Beal v. Green et al
MEMORANDUM AND ORDER re: 2 MOTION for Leave to Proceed in forma pauperis under 42:1983 (prisoner) filed by Plaintiff Jonathan Lamar Beal. IT IS HEREBY ORDERED that plaintiff's motion to proceed in forma pauperis [Doc. #2] is GRANTED. IT IS F URTHER ORDERED that plaintiff shall pay an initial filing fee of $8.23 within thirty (30) days of the date of this Order. Plaintiff is instructed to make his remittance payable to "Clerk, United States District Court," and to include u pon it: (1) his name; (2) his prison registration number; (3) the case number; and (4) that the remittance is for an original proceeding. IT IS FURTHER ORDERED that the Clerk shall not issue process or cause process to issue upon, because the complai nt is legally frivolous and fails to state a claim upon which relief can be granted. See 28 U.S.C. 1915(e)(2)(B). A separate Order of Dismissal shall accompany this Memorandum and Order. (Initial Partial Filing Fee due by 3/30/2015.) Signed by District Judge Stephen N. Limbaugh, Jr on 2/27/15. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JONATHAN LAMAR BEAL,
NICOLE GREEN, et al.,
MEMORANDUM AND ORDER
This matter is before the Court on the motion of Jonathan Lamar Beal
(registration no. 1181492) for leave to commence this action without payment of the
required filing fee [Doc. #2]. The Court will grant the motion and assess plaintiff
an initial partial filing fee of $8.23. In addition, after reviewing the complaint [Doc.
#1] and for the reasons set forth below, the Court will dismiss this action pursuant to
28 U.S.C. ' 1915(e)(2)(B).
28 U.S.C. ' 1915(b)(1)
Pursuant to 28 U.S.C. ' 1915(b)(1), a prisoner bringing a civil action in forma
pauperis is required to pay the full amount of the filing fee. If the prisoner has
insufficient funds in his or her prison account to pay the entire fee, the Court must
assess and, when funds exist, collect an initial partial filing fee of 20 percent of the
greater of (1) the average monthly deposits in the prisoner=s account, or (2) the
average monthly balance in the prisoner=s account for the prior six-month period.
After payment of the initial partial filing fee, the prisoner is required to make
monthly payments of 20 percent of the preceding month=s income credited to the
prisoner=s account. 28 U.S.C. ' 1915(b)(2). The agency having custody of the
prisoner will forward these monthly payments to the Clerk of Court each time the
amount in the prisoner=s account exceeds $10, until the filing fee is fully paid. Id.
Plaintiff has submitted an affidavit and a certified copy of his prison account
statement for the six-month period immediately preceding the submission of his
complaint. A review of plaintiff=s account indicates an average monthly deposit of
$41.17, and an average monthly balance of $10.00. Plaintiff has insufficient funds
to pay the entire filing fee. Accordingly, the Court will assess an initial partial
filing fee of $8.23, which is 20 percent of plaintiff=s average monthly deposit.
28 U.S.C. ' 1915(e)
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court must dismiss a complaint
filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is
immune from such relief. An action is frivolous if it "lacks an arguable basis in
either law or fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is
malicious if it is undertaken for the purpose of harassing the named defendants and
not for the purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F.
Supp. 458, 461-63 (E.D.N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987).
action fails to state a claim upon which relief can be granted if it does not plead
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify
the allegations in the complaint that are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009).
These include "legal
conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are]
supported by mere conclusory statements." Id. at 1949. Second, the Court must
determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a "context-specific task that requires the reviewing court to draw on its
judicial experience and common sense." Id. at 1950. The plaintiff is required to
plead facts that show more than the "mere possibility of misconduct." Id. The
Court must review the factual allegations in the complaint "to determine if they
plausibly suggest an entitlement to relief."
Id. at 1951.
When faced with
alternative explanations for the alleged misconduct, the Court may exercise its
judgment in determining whether plaintiff's conclusion is the most plausible or
whether it is more likely that no misconduct occurred. Id. at 1950-52.
Moreover, in reviewing a pro se complaint under ' 1915(e)(2)(B), the Court
must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404
U.S. 519, 520 (1972).
The Court must also weigh all factual allegations in favor of
the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez,
504 U.S. 25, 32 (1992).
Plaintiff, an inmate at the Dunklin County Justice Center, seeks monetary
relief in this 42 U.S.C. ' 1983 action against Nicole Green (Supervisor), Ashley
Grisham (Nurse), Linda Hughes (Correctional Officer), and Bob Holder (Sheriff).
Plaintiff’s allegations arise out of an incident that took place on February 25, 2012.
Plaintiff alleges that he sustained bruised bones and a torn muscle in his lower back
after oil began leaking from machinery at the Dunklin County Justice Center.
Plaintiff complains that “it took the CO’s an hour to call the ambulance” and that
they had threatened not to place the call unless plaintiff rolled over.
ambulance, plaintiff was told, “Shut up before they shove tubes down [your] throat.”
Plaintiff alleges that he was prescribed a non-narcotic pain medication, but
defendant Grisham refused to give it to him and told him to buy some ibuprofen at
the canteen, knowing he had no money to pay for it. In addition, he claims that
defendant Green failed to call an ambulance when she first heard about the incident,
that defendant Holder failed to respond to plaintiff’s grievances regarding the
neglect of his officers, and that defendant Hughes “kept touching [him] while [he]
laid on the ground in pain, asking [him if] it hurt.”
Plaintiff brings this action against defendants in their official capacities. See
Egerdahl v. Hibbing Community College, 72 F.3d 615, 619 (8th Cir. 1995) (where a
complaint is silent about defendant=s capacity, Court must interpret the complaint as
including official-capacity claims); Nix v. Norman, 879 F.2d 429, 431 (8th Cir.
Naming a government official in his or her official capacity is the
equivalent of naming the government entity that employs the official. Will v.
Michigan Dep=t of State Police, 491 U.S. 58, 71 (1989). To state a claim against a
municipality or a government official in his or her official capacity, plaintiff must
allege that a policy or custom of the government entity is responsible for the alleged
constitutional violation. Monell v. Dep=t of Social Services, 436 U.S. 658, 690-91
(1978). The instant complaint does not contain any allegations that a policy or
custom of a government entity was responsible for the alleged violations of
plaintiff=s constitutional rights. As a result, the complaint is legally frivolous and
fails to state a claim upon which relief can be granted.
As additional grounds for dismissing this action, the Court notes that
supervisors, such as defendant Holder, cannot be held vicariously liable under '
1983 for the actions of a subordinate. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948
(2009); see also Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990) (liability
under ' 1983 requires a causal link to, and direct responsibility for, the alleged
deprivation of rights); Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985) (claim
not cognizable under ' 1983 where plaintiff fails to allege defendant was personally
involved in or directly responsible for incidents that injured plaintiff); Boyd v. Knox,
47 F.3d 966, 968 (8th Cir. 1995) (respondeat superior theory inapplicable in ' 1983
suits); Keeper v. King, 130 F.3d 1309, 1314 (8th Cir. 1997) (noting that general
responsibility for supervising operations of prison is insufficient to establish
personal involvement required to support liability under ' 1983); see also Rivera v.
Goord, 119 F.Supp.2d 327, 344 (S.D.N.Y.2000) (allegations that inmate wrote to
prison officials and was ignored insufficient to hold those officials liable under '
1983); Woods v. Goord, 1998 WL 740782, at *6 (S.D.N.Y. Oct.23, 1998) (receiving
letters or complaints does not render prison officials personally liable under ' 1983);
Watson v. McGinnis, 964 F.Supp. 127, 130 (S.D.N.Y.1997) (allegations that an
official ignored a prisoner's letter are insufficient to establish liability).
Furthermore, mere words, without more, usually do not invade federally
protected rights, and mere negligence does not rise to the level of a constitutional
violation. See Burton v. Livingston, 791 F.2d 97, 99-100 (8th Cir. 1986) (usually,
mere words, without more, do not invade federally protected right; "rough
language" resulting only in hurt feelings not actionable under ' 1983); Martin v.
Sargent, 780 F.2d 1334, 1338-39 (8th Cir. 1985) (verbal threats and name calling
usually are not actionable under ' 1983); Daniels v. Williams, 474 U.S. 327, 328
(1986); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (mere negligence is not
cognizable as Eighth Amendment violation); Morton v. Becker, 793 F.2d 185, 188
n.3 (8th Cir. 1986) (Fourteenth Amendment Due Process Clause is not implicated by
state official=s negligent act causing unintended loss of or injury to life, liberty, or
For these reasons, this action will be dismissed pursuant to 28 U.S.C. '
IT IS HEREBY ORDERED that plaintiff=s motion to proceed in forma
pauperis [Doc. #2] is GRANTED.
IT IS FURTHER ORDERED that plaintiff shall pay an initial filing fee of
$8.23 within thirty (30) days of the date of this Order. Plaintiff is instructed to
make his remittance payable to AClerk, United States District Court,@ and to include
upon it: (1) his name; (2) his prison registration number; (3) the case number; and (4)
that the remittance is for an original proceeding.
IT IS FURTHER ORDERED that the Clerk shall not issue process or cause
process to issue upon, because the complaint is legally frivolous and fails to state a
claim upon which relief can be granted. See 28 U.S.C. ' 1915(e)(2)(B).
A separate Order of Dismissal shall accompany this Memorandum and Order.
Dated this 27th day of February, 2015.
UNITED STATES DISTRICT JUDGE
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